U.S. v. Vazquez

• Decision Date: 07 June 1995
• Docket Number: No. 93-4816,93-4816
• Citation: 53 F.3d 1216
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramon J. VAZQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1216

53 F.3d 1216

UNITED STATES of America, Plaintiff-Appellee, v. Ramon J. VAZQUEZ, Defendant-Appellant.

No. 93-4816.

United States Court of Appeals Eleventh Circuit.

June 7, 1995.

Mark King Leban, Miami, FL, for appellant.

Kendall B. Coffey, U.S. Atty., Steven A. Tyrrell, Carol Herman, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

CARNES, Circuit Judge:

In May of 1993, a federal district court jury convicted Ramon J. Vazquez of forty-one counts of structuring financial transactions and one count of conspiracy to structure financial transactions. Relying primarily on Ratzlaf v. United States, --- U.S. ----, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), issued by the Supreme Court after Vazquez had filed an appeal with this Court, Vazquez challenges his conviction on two grounds, asserting that the district court committed plain error in instructing the jury, and that there was insufficient evidence to support his conviction. He challenges his sentence on two grounds, as well, contending that the district court judge improperly enhanced his sentence under the "criminally derived property" adjustment, and that this Court should remand for resentencing according to a post-sentencing amendment to the applicable Sentencing Guideline. We reject Vazquez's attacks on his conviction and his contention concerning application of the "criminally derived property" adjustment to his sentencing calculus. However, we remand so that the district court may determine whether to resentence Vazquez under the amended Guideline.

I. BACKGROUND

A. THE STATUTORY REQUIREMENTS

The Currency and Foreign Transactions Reporting Act and its accompanying regulations require banks and other financial institutions to file a report with the government for any cash transactions involving more than $10,000. 31 U.S.C.A. Sec. 5313(a) (West 1983); 31 C.F.R. Sec. 103.22(a)(1) (1994). A financial institution also must file this report, known as a Currency Transaction Report ("CTR"), if it knows that a person is making multiple transactions in a single day that result in either deposits or withdrawals totalling over $10,000. 31 C.F.R. Sec. 103.22(a)(1). It is illegal under Sec. 5324 to cause or attempt to cause a financial institution to fail to file a report or to structure cash transactions "for the purpose of evading" the filing of a CTR. 31 U.S.C. Sec. 5324(1) & (3). ¹ According to the regulations, a person structures a transaction when he "conducts or attempts to conduct one or more transactions in currency, in any amount, at one or more financial institutions, on one or more days, in any manner, for the purpose of evading the reporting requirements ...." 31 C.F.R. Sec. 103.11(p). Section 5322 provides criminal penalties for any person "willfully violating" these provisions. 31 U.S.C.A. Sec. 5322 (West Supp.1994). ² This anti-structuring law "aims to prevent people from either causing a bank to fail to file a required report or defeating the government's efforts to identify large cash transactions by splitting up a cash hoard in a manner that avoids triggering a bank's reporting requirements." United States v. Paul, 23 F.3d 365, 367-68 (11th Cir.1994).

Vazquez was convicted of forty-one counts of causing or attempting to cause a bank to fail to file CTRs in violation of 31 U.S.C. Secs. 5313(a), 5324(1), 5322(b); 31 C.F.R. Secs. 103.11, 103.22 (1994); and 18 U.S.C. Sec. 2. In addition, Vazquez and his wife, Suzanna Lynn Vermeul, were convicted of one count of conspiracy to structure financial transactions in violation of 31 U.S.C. Sec. 5324(1) and (3); and 18 U.S.C. Sec. 371. The district court sentenced Vazquez to concurrent terms of forty-eight months imprisonment followed by three years of supervised release. Although Vermeul also was convicted for eighteen counts of structuring, the district court entered a judgment of acquittal notwithstanding the verdict as to all but one of those counts. She has not appealed her conviction or sentence.

B. THE EVIDENCE

At trial, the government presented evidence that Vazquez, a carpenter in Miami, and Vermeul opened three bank accounts between 1986 and 1988 at Ponce de Leon Federal Savings and Loan ("Ponce de Leon Federal") in Coral Gables, Florida: a personal checking account, a business checking account, and a personal savings account. ³ Evelyn Bermejo, a branch manager at Ponce de Leon Federal, testified that beginning in 1991, there were large deposits and overdrafts in those accounts. Bermejo testified that forty-eight deposits over $10,000 were made into these accounts, and that she informed Vazquez that the bank was required to file a report when he made large cash transactions. Bermejo stated that she told Vazquez that the bank also filed a CTR if the sum of multiple deposits in the course of a single day exceeded $10,000. Ponce de Leon Federal eventually asked Vazquez to close out his accounts because of the substantial amount of overdrafts and because his large deposits often made the branch exceed the maximum cash level mandated by its insurance company. In August 1991, Vermeul opened a checking account at Barnett Bank in Miami Beach, Florida, and Vazquez did the same in January 1992. Barnett Bank has a computerized system that allows it to aggregate all the cash deposits made to an account during a single day in order to determine whether a CTR should be filed. Between December 1991 and April 1992, Vazquez and Vermeul made almost 200 deposits totalling $1,480,788 into these two accounts at four different branches of Barnett Bank. Vazquez made multiple deposits almost every business day, sometimes at different Barnett branches and sometimes at the same branch with the same teller on occasions separated by as little as two to three minutes. Each individual deposit was less than the $10,000 threshold amount, although the total for each day exceeded that amount. For example, on March 5, 1992, six different deposits were made into Vazquez's account at four separate branches. The last three deposits were made at the same branch with the same teller and spaced approximately two to four minutes apart. The individual deposits ranged from $8,700 to $9,800 and the total deposited in the account for that day was $60,000.

There was evidence of other suspicious behavior by Vazquez. On one occasion, he asked a teller if he could make one deposit before two o'clock and another after two o'clock. After this request, Vazquez made a deposit and reentered the customer line. On another day, while Vazquez was purchasing a cashier's check and depositing $9,000 in his account, another unidentified man deposited $7,000 in Vazquez's account at virtually the same time. When the teller told the other man that his deposit was $100 less than the amount on his deposit slip, Vazquez gave the man money from his pocket to complete the transaction. During another visit to the bank, Vazquez told a teller that he would have liked to deposit more than $10,000, but that he did not want a CTR to be filed.

In addition, Vazquez gave inconsistent explanations of where he was obtaining the money that he was depositing. He told one teller that he had a construction company and that he cashed his customers' checks at another bank before making a deposit at Barnett. He informed another teller that he got his money from renting apartments in a building he owned near the beach, and he mentioned to a third bank employee that the money he deposited into the Vermeul account was money he was required to give to his ex-wife. Finally, his post-arrest statement to the police described the check-kiting scheme explained below.

The defense did not attempt to contest the government's evidence of Vazquez's numerous banking transactions; instead, it offered an alternative theory to explain his peculiar banking practices. Vazquez took the stand and testified that he began encountering financial difficulties at the end of 1990 after opening up his own carpentry shop. He stated that there often were delays in receiving payments from his contractors and that those delays had led to large overdrafts in his bank account at Ponce de Leon Federal. As a solution to his financial straits, Vazquez decided to "do this type of cashing checks." To cover his overdrafts, he would cash a check at a supermarket, often under a fictitious name, for an amount equal to the overdraft plus the check cashing charge. He then would deposit the cash at the bank. Since he actually had very little money, Vazquez had to continually cash checks and make deposits to cover the previously cashed checks. Vazquez began this check-kiting scheme at Ponce de Leon Federal in mid- to late 1991, but then opened up an account at Barnett Bank after Ponce de Leon Federal refused to accept such large deposits anymore.

Vazquez acknowledged that his check kiting was wrong, but denied that he structured his deposits to avoid the filing of CTRs. He testified that the branch manager at Ponce de Leon Federal had told him that the bank filed reports whenever he made a deposit of $10,000 at one time or at different times within a single day. Vazquez was aware of this when he opened his Barnett account; thus, he stated that his multiple deposits in a single day were not intended to avoid the filing of a CTR, because he knew that the bank would aggregate his deposits, anyway. Vazquez explained that the reason many of his deposits were between $9,000 and $10,000 was that the supermarkets where he was cashing checks often did not have enough money to cash all of his checks at the same time. As a result, he would get whatever cash the store had, deposit it, and then return later when the store had more cash available. Vazquez also stated that many of the deposits were separated by only a few minutes because, as he was...